Waizman v. Black

Plaintiff sued for injuries received in an automobile collision. The cause was tried before a jury and resulted in a verdict for plaintiff and against the defendants Black and Hazel Reding in the sum of ten thousand dollars. The defendant Reding alone appeals from the judgment following the verdict, upon typewritten transcripts.

On September 1, 1927, the plaintiff was returning from Yosemite Valley riding as the guest of the defendant Black in the latter’s Ford coupe. At about 1:30 P. M. of that day, as they approached from the south the intersection of the Yosemite highway with G Street in the city of Merced, the car driven by the appellant approached the same intersection traveling east on G Street. As the appellant’s car had about crossed the intersection of the two streets the Black car crashed into it, striking the right rear wheel and fender of appellant’s car with the front right wheel and fender of the Black car. As a result of the collision the Black ear went up in the air, landed on its radiator and then on its top with the wheels in the air, and finally came to a stop resting on its left side in the furthermost (or northeast) corner of the intersection close to the northerly curb of G Street. The appellant’s car was turned completely around “in its tracks” and came to a stop close to the southerly line of G Street with the front end “just about in line with the sidewalk.”

Passing for the moment the controversy between the parties as to the relative rates of speed of the two vehicles, the undisputed evidence is that appellant’s car was proceeding well over toward the right-hand curb of G Street, that it had passed into the intersection of the two streets and “had just about cleared the (Twenty-first) street” when it was struck in the rear by the Black car. Thus the collision occurred in the southeast corner of the intersection after the appellant had entered and almost cleared the intersection and at a time when the Black car had scarcely more than nosed into the intersection. The evidence does not clearly show the exact width of either street in the intersection, but all the evidence, when viewed in the light most favorable to respondent, shows that appellant’s ear traveled at least four times the distance in the intersection before the impact that was traveled by the Black car.

Upon the issue of appellant’s negligence there is some testimony in the record which at first glance would seem to create a conflict. Both the plaintiff and Miss Black testified that their car approached and proceeded into

This testimony carries the usual discrepancies where inexperienced and prejudiced witnesses are asked to give their opinions on matters of which they know nothing. Thus, as to the question of speed of appellant’s car, the plaintiff frankly admitted she was unable to testify and then guessed that it was about thirty, or thirty-five, while Miss Black, when asked how fast appellant was going at the intersection, answered: “maybe thirty-five or forty.” If we were to consider such testimony as evidence it is certainly evidence of the weakest character which must give way to the physical facts when such facts clearly demonstrate that the estimates of the witnesses were poor guesswork.

Here the undisputed physical facts are that the Black car made a complete somersault and landed on its side on the other side of the street some forty or fifty feet from the point of impact, while appellant’s ear was turned completely around and stopped in its tracks. Can there he any doubt as to the relative rate of speed of the two cars at that time? The same undisputed evidence is that the appellant had entered the intersection and had almost passed completely through it before struck in the rear by the Black car at the furthermost southeast corner of the intersection. Can there be any doubt as to which ear first entered the intersection? If the testimony of plaintiff and of Miss

We have read the record with care, including the entire typewritten transcript of the testimony, and fail to find any evidence of any character showing negligence on the part of the appellant. The only competent evidence in the record is that she approached the intersection at a lawful rate of speed at a time when the Black car was about one hundred feet away, that she proceeded across the intersection at a lawful rate of speed and in a prudent and careful manner. She had just about cleared the intersection when the Black car, proceeding at an excessive and unlawful rate of speed, crashed into her. If appellant’s car had struck the Black ear or if the Black car had struck appellant’s car admidship or near the front portion, there would have been some doubt as to these disputed questions of fact, but, when the car approaching the intersection from the south strikes another car on the very tail end of the latter as the latter car is leaving the intersection, the conjectures of witnesses as to relative speed and time of entering the intersection must fall before the undisputed physical facts. We are not unmindful of the accepted rule that the weight of expert or opinion evidence is ordinarily a question for the jury. We merely hold that the opinion of a nonexpert witness upon a subject about which he is admittedly unqualified to testify does not create a. conflict with the undisputed physical facts which demonstrate beyond all reasonable doubt that the expressed opinion was merely an erroneous guess. A similar situation arose in Newell-Murdock R. Co. v. Wickham, 183 Cal. 39 , 43 [ 190 Pac. 359 ], where the Supreme Court said: “These statements of the witness, which are but statements, of conclusions and probabilities, following his emphatic statement that the subject was not touched upon, cannot be considered as a substantial contradiction of the positive testimony of the defendants that nothing of the kind was said. ” So, too, the “mere opinion or conclusion of a

As the judgment must be reversed for the reasons given it is unnecessary to consider the other point raised.

Judgment reversed.

Koford, P. J., and Sturtevant, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on November 26, 1929, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 30, 1929.

All the Justices present concurred.